Tuesday, February 9, 2021
The Second Department, Appellate Division, for the Supreme Court of New York, recently held in a matter of first impression, that an insurance company with a duty to defend may not recover defense costs after a determination that no duty to indemnify or further defend exists—even though the insurer expressly reserved its right to recoup such defense costs—unless the policy explicitly provides for such recovery.
See
In the underlying personal injury action, commenced in January 2011, Victor Gecaj sought to recover damages for injuries he allegedly sustained when he fell from a ladder at a property owned and operated by the insureds. The insureds failed to notify its insurance company about Gecaj’s accident until October 2014—more than four years after the incident, and after an inquest on damages had occurred, and judgment had been rendered against the insureds in the sum of $900,000. The insurance company denied coverage based on late notice. However, the default judgment was then vacated, and the insurance company agreed to provide a defense under a reservation of rights to deny coverage if the default judgment was later reinstated. When the default judgment was reinstated, the insurance company advised the insureds and Gecaj that it was denying coverage, and reserving its right to recover any fees and costs incurred in defending the insureds in the underlying action. The insurance company then initiated a declaratory judgment action, seeking a declaration that it had no duty to indemnify, no further duty to defend, and was entitled to recover defense costs incurred to date. The Supreme Court granted the insurance company’s motion for summary judgment, and the insureds appealed.